Mental wanderings of a common man.

Loudoun School Board abusing eminent domain powers

Eminent Domain: n. the power of a governmental entity (federal, state, county or city government, school district, hospital district or other agencies) to take private real estate for public use, with or without the permission of the owner.

In any other context, by any other entity, eminent domain is merely theft. When someone comes in and takes possession of property that unquestionably belongs to you without securing your freely-granted agreement to transfer said property, that is stealing, plain and simple. Societies such as ours understand, however, that there may come a time when a particular public use can only be served when situated at a specific place. Should that place be private property and no agreement can be secured with the owner of the place to purchase the land, the power to require the owner to relinquish the land must be available to the government so as to best serve the public good for all. Even those that bristle at the use of such power – such as myself – understand that there are situations that justify it. But there are requirements that must be met to engage this power.

First, the use intended must be an actual public use. Unlike the situation in the disastrously-ruled Kelo v. New London, a public use means the public is going to gain something that the public will actually use, not some nebulous promise of maybe more tax money being generated. Second, and this is critical because it’s Constitutional, the owner of the land must be compensated justly. That’s what the 5th Amendment to the US Constitution means when it says, “nor shall private property be taken for public use, without just compensation.”

Just compensation means that government must pay for the land like anyone else and it needs to pay the value that the market would bring. In other words, the government can’t – if they are going to be compensating justly – come in and pay you $5 for property that’s valued at $500.

The Loudoun County School Board has elected to use eminent domain to acquire a 17-acre property in Ashburn for a new elementary school.

In a 6-3 vote, the board elected June 25 to take the property, located on Belmont Ridge Road near Croson Lane, to build ES-27, an elementary school to serve Ashburn and Brambleton residents. The property is owned by Edwin Lim, a pastor in Fairfax, Sarah Lim and trustees of the Sung Chun Park and Chun Hwa Park Living Trust.

Negotiations between the two parties have been difficult. According to Michael Coughlin, an attorney with Walsh Colucci Lubeley Emrich and Walsh who is representing the landowners, the property owners currently have an offer of $4.5 million, though he would not disclose who made the offer. The School Board has offered $1.5 million and the county assessor has valued the land and the single-family home on the property at $2.18 million. The Lims and Park trustees made a counteroffer of $3.75 million to the School Board.

I read this on Wednesday when it came out but only got time to write this morning. Trust me, I’ve been wanting to address this badly. OK, let’s back up here and take a look at this travesty. I cannot imagine the justification someone could possibly have to demand a specific parcel of land to build a school. You take property under eminent domain because, in order to provide the “public use” intended, you must build it at that specific place. A highway interchange, for example, has to be at a spot where the highway to be connected current sits. You can’t just build that anywhere. If you’re going to build a flood wall you have to do it along the river you’re concerned might flood. Building that out a few miles away wouldn’t help at all. You have to build it where it will work, and if that happens to be on private property that the owner won’t agree to sell, then you might have a proper eminent domain situation. But a school? You’re telling me that the school wouldn’t function a mile down the road? Preposterous.

As for the “just compensation” part, perhaps the members of our School Board who voted in favor of this injustice could use a remedial math class? The County’s own assessor placed the value of this property at $2.18 million and their idea of a just compensation is $1.5 million? Has it escaped their notice that 1.5 is less than 2.18? It is beyond inexcusable that the School Board would even suggest a compensation figure less than the County’s own assessment of the value. It’s insulting and smacks of extortion.

The Board’s attorney did his best to not look like a flaming jerk when he tells us all that this is going to be a “slow take” and that nothing says that negotiations can’t continue even though the Board has voted to begin the process of forcing the owners to give up their property. And the comment by Jeff Morse of Dulles that “[w]e’re not pushing someone out of their house” just demonstrates the air of entitlement and dismissal of the rights of citizens that clearly animated this move. How is anyone to seriously consider that what will follow now can be termed “negotiations” in any respect? The Board has set an hourglass on the table and given themselves a huge advantage in any further discussions: “Hey, you better take whatever offer we give you and do it soon, ‘cause when the sand runs out, well, you just get to cough up the property at under market value.” Isn’t that the cliché of the approach of organized crime?

The matter of whether the property owners have or have not received a better offer from someone else is irrelevant to this action and is just so much attempt by the Board to distract. It is no one’s business but the owners and the other prospective buyer whether an offer exists and for how much. That the Board should even consider themselves entitled to that information suggests they have lost sight of the limits of their powers.

I would also contend that this situation demonstrates that the power of eminent domain is far too serious for them to handle. The School Board should not be permitted to exercise this power, not in this case nor any other. If the School Board has a situation they believe honestly warrants the use of eminent domain then they should be required to engage with the Board of Supervisors on the matter and convince them that it’s the proper move. Only then should eminent domain proceedings begin and it should be under the control of the BoS that it does so.

I am pleased beyond by ability to convey that our own representative, Debbie Rose, both voted against this measure and has spoken out boldly against the use of this power. As she said, quoted in this story, “Difficult negotiations don’t ever equate to just taking property away.” I’m proud of you, Ms. Rose, and you could not be more correct. Eminent domain was never intended as a tool to make the jobs of civil planners – or School Boards – easier. It’s a last resort and for good reason. The School Board hasn’t come close to meeting that burden. This action should be halted immediately and whatever legislation gives School Boards the power to engage eminent domain should be seriously reviewed.